Assigned on Briefs March 27, 2019
from the Chancery Court for Knox County No. 191643-2 Clarence
E. Pridemore, Jr., Chancellor
accelerated interlocutory appeal follows the denial of a
motion to recuse. The party seeking recusal claimed that an
in-limine motion was granted after an ex parte communication
between the chancellor and the counsel moving in limine.
Additionally, the party claimed that the court showed
partiality by not granting a continuance of the hearing on
the in-limine motion when her counsel was unable to attend
due to illness. We affirm the denial of the recusal request.
Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of
the Chancery Court Affirmed and Case Remanded
S. Randolph, Dandridge, Tennessee, for the appellant, Laurie
Neal McBrayer, J., delivered the opinion of the court, in
which Charles D. Susano, Jr., J., and J. Steven Stafford,
P.J., W.S., joined.
NEAL McBRAYER, JUDGE
Chancery Court for Knox County, Tennessee, Laurie Elizabeth
Lee petitioned to modify a permanent parenting plan. The
chancery court set the matter for a December 5, 2018 trial.
Two weeks prior to the trial, the father, Bryan Mitchell Lee,
filed an in-limine motion, which was also set for December 5.
The in-limine motion was not included with the petition for
December 4, Ms. Lee's counsel, Jason Randolph, fell
"ill with a severe stomach virus which had ravaged
Jefferson County." Mr. Randolph much later explained
that he "was stricken with the Mother of all viruses
rendering him unable to move due to cramping and pain"
and that he "was unable to concoct a pleading and simply
texted his assistant to make the urgent notification."
On the afternoon of December 4, the chancery court received
the urgent notification, a facsimile from Mr. Randolph's
assistant advising the court that Mr. Randolph was ill and
was unable to appear in court the next day. The facsimile was
also not included with the petition for recusal appeal.
following day the chancery court continued the trial on the
petition to modify to January 31, 2019. But the court heard
the in-limine motion. Based upon, among other things,
"the argument of counsel," the court granted the
in-limine motion and "barred [Ms. Lee] from calling any
witnesses to testify at the trial . . . other than
herself." The court also awarded Mr. Lee costs and
attorney's fees, leaving the determination of the proper
amount until trial. In its order entered on December 18,
2018, the court acknowledged the facsimile from Mr.
Randolph's assistant but noted that "no formal
request or Motion for Continuance of the trial date was made
by [Ms. Lee] or her counsel and both [Ms. Lee] and her
counsel failed to attend court on the trial date without
seeking leave of court to do so."
January 31, the trial did not take place as scheduled.
Apparently, Mr. Randolph "had a series of juries to
prepare for," so the court reset the trial for Tuesday,
March 5, 2019.
Friday, March 1, Ms. Lee moved to recuse the chancellor. As
grounds, the motion cited the court's order granting the
in-limine motion. From the order, Ms. Lee concluded that
"[e]vidently, Father's counsel appeared [at the
hearing] and had Exparte Communication which resulted in an
Order being issued" because the order stated it was
based upon "the argument of counsel." The motion
went on that, "by having Exparte Communication and
hearing [sic] without hearing all witnesses and facts,"
the court "failed to consider all of the facts."
According to Ms. Lee, "[t]he failure of the Court to
allow the case to be heard completely before making a ruling
shows a lack of impartiality and impairs the fairness of the
matter pending before the Court."
also faulted the court for not treating the facsimile of Mr.
Randolph's assistant as a request for a continuance of
the hearing. Describing the court's requirement of a
motion for continuance "when illness strikes
suddenly" as "draconian," Ms. Lee submitted
that "[i]t [wa]s obvious the Court had appeared and
acted partially in this case to my . . . prejudice."
chancery court denied the recusal request. The court
acknowledged that counsel for Mr. Lee appeared at the hearing
on the in-limine motion and argued in the absence of both Ms.
Lee and her counsel. But the court did not consider argument
in open court ex parte communication. The court also again
acknowledged the letter sent from Mr. Randolph's office
the day prior to the hearing. But it noted that no motion ...